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Religious Symbols in European Classrooms (Lautsi and Others v. Italy)
Grand Chamber, Case Of Lautsi And Others V. Italy, Strasbourg, 18 March 2011
Page 29
CONCURRING OPINION OF JUDGE ROZAKIS JOINED BY JUDGE VAJIC
The main issue to be resolved in this case is the effect of the application of the proportionality test to the facts. Proportionality between, on the one hand, the right of parents to ensure their children's education and teaching in conformity with their own religious and philosophical convictions, and, on the other hand, the right or interest of at least a very large segment of society to display religious symbols as a manifestation of religion or belief. Consequently, both the competing values involved in this case are simultaneously protected by the Convention, through Article 2 of Protocol No. 1 (the lex specialis), read in the light of Article 9 of the Convention, in so far as the parents are concerned, and Article 9 of the Convention, in so far as society's rights are concerned.
Concerning, first, the parents' right, the Court's judgment underlines that the word “respect” in the second sentence of Article 2 of Protocol No. 1 “means more than 'acknowledge' or 'take into account'; in addition to a primarily negative obligation, it implies some positive obligation on the part of the State” (see paragraph 61 of the judgment). Yet the respect due to the parents, even in the form of some positive obligation, “does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum” (see paragraph 62).
This last reference to the Convention's case-law needs, I think, some further analysis. It is indisputable that Article 2 of Protocol No. 1 enshrines the fundamental right to education: a sacrosanct individual right – which undoubtedly can also be seen from the angle of a social right – that seems to be constantly gaining ground in our European societies. However, while the right to education constitutes one of the cornerstones of the protection of individuals under the Convention, the same cannot be said with equal force, to my mind, of the subordinate right of parents to ensure their children's education in accordance with their religious or philosophical beliefs. Here matters differ considerably, for a number of reasons:
(i) that right, although linked to the right to education, does not directly vest in the basic recipient of the right, namely, in the recipient of the education, that is, the one who has the right to be educated. It vests in the parents – whose direct right to education is not at stake in the circumstances – and is limited to one aspect of education alone: their religious and philosophical convictions.
(ii) although there is admittedly an obvious relationship between the education that children receive in their schools and the religious and philosophical ideas and opinions, deriving from convictions, which exist in the family environment – a relationship that requires a degree of harmonisation in these matters between the school and home environments – Europe has nevertheless changed dramatically regarding this aspect as well as others since Protocol No. 1 was adopted. Most of us now live in multicultural, multi-ethnic societies within our national States, a feature which has become a common characteristic of those societies, and children living in that environment are exposed, in their everyday life, to ideas and opinions which go beyond those emanating from school and their parents. Human relations outside the parental roof and modern means of communication undoubtedly contribute to that effect. As a consequence, children become accustomed to receiving a variety of frequently conflicting ideas and opinions and the role of both school and parents in these matters has become relatively less influential.
Cf. Eastern Roman Empire (Byzantium) * Ancient Rome * Ancient Greece * The Making of Europe
